U.S. v. Forman

• Decision Date: 30 December 1997
• Docket Number: No. 96-CR-80978.,96-CR-80978.
• Citation: 990 F.Supp. 875
• Parties: UNITED STATES of America, Plaintiff, v. Theodore S. FORMAN, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 875

990 F.Supp. 875

UNITED STATES of America, Plaintiff, v. Theodore S. FORMAN, Defendant.

No. 96-CR-80978.

United States District Court, E.D. Michigan, Southern Division.

December 30, 1997.

Alan Gershel, David Diebold, Asst. U.S. Attys., Detroit, MI, for plaintiff.

Gary J. McInerney, Grand Rapids, MI, for defendant.

OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS INDICTMENT AND MOTION TO CONSIDER JUROR AFFIDAVITS

ROSEN, District Judge.

I. INTRODUCTION

This matter is presently before the Court on Defendant Theodore S. Forman's Motion to Dismiss Indictment and Motion to Consider Juror Affidavits. Having reviewed and considered the parties' original and supplemental briefs and exhibits in support thereof, and having heard the oral arguments of counsel, the Court is now prepared to rule on Defendant's Motions. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

BACKGROUND

Defendant Theodore S. Forman is a former federal prosecutor who, in 1992, worked as a trial attorney prosecuting criminal tax cases in the Criminal Enforcement Section of the Tax Division of the Justice Department in Washington, D.C.

During 1992, the Organized Crime Strike Force of the United States Attorney's Office in Detroit began an investigation of reputed Mafia boss, Vito Giacalone, and his attorney Nathaniel C. Deday LaRene. As part of this investigation, a grand jury was convened in the Eastern District of Michigan.

Although the Giacalone/LaRene investigation initially focused on allegations of extortion and money laundering, the focus of the investigation subsequently turned to tax evasion. Special Agent Frank Scartozzi of the IRS was assigned to the investigation and he subsequently prepared a 1200-page Special Agent's Report ("SAR") that detailed his findings. Included in this report were transcripts from the grand jury proceedings; the names, addresses and telephone numbers of witnesses who had testified before the grand jury; a summary of the government's investigation; a statement of the government's theory of prosecution of the case; and a discussion of potential defenses to the prosecution.

Because all criminal tax evasion prosecutions must be approved by the Tax Division of the Justice Department in Washington in March 1992, the U.S. Attorney for the Eastern District of Michigan sent the case file for the Giacalone/LaRene investigation, which included Agent Scartozzi's SAR, to the Tax Division in Washington. The case was then assigned to criminal tax enforcement attorney Curtis Nash, who at the time was Forman's office mate.

In October 1992, while the grand jury investigation of Giacalone and LaRene was still ongoing, federal agents who were conducting a separate investigation concerning Giacalone executed a search warrant at Giacalone's office. During the search of Giacalone's office, the agents unexpectedly found a copy of Special Agent' Scartozzi's SAR for the Giacalone/LaRene case.

The FBI subsequently investigated the matter to determine how the Giacalone/LaRene SAR came into Giacalone's possession.

In the course of the investigation, the FBI began interviewing everyone in the Justice Department Washington office where the Giacalone/LaRene file was kept. When he was first interviewed, Forman denied ever having seen or touched the SAR. However, after the SAR was dusted for fingerprints and Forman's prints were found on it, Forman ultimately admitted to the FBI Special Agent assigned to the case that he had indeed photocopied the SAR and delivered it to his boyhood and life-long friend, Paul Corrado, whose father, Anthony Corrado, is a reputed member of the Giacalone organized crime syndicate. Forman claimed, however, that he provided the copy of the SAR under duress because he believed that his father's life was in danger if he did not provide assistance to Giacalone.

Forman's story was that his mother, Helen Formanczyk, a chronic gambler, had amassed nearly $500,000 in gambling debts and had squandered the family's entire savings. At some point, Mrs. Formanczyk got involved in narcotics trafficking. She was subsequently arrested and convicted of drug trafficking in 1990, and since that time has been serving an 11-year sentence.

Forman claimed that after his mother was imprisoned, men began to visit his father demanding payment of Helen Formanczyk's gambling debts. Forman allegedly discussed the threats with his friend, Paul Corrado, who supposedly told him that the men were serious about collecting the debts. When Forman asked Corrado if there was anything that Corrado could do to protect his father, Corrado allegedly responded that he would help if Forman obtained information that would help Giacalone "beat the case" against him. Forman claimed that it was in order to insure his father's safety that he copied the Scartozzi SAR and delivered it to Corrado.

PROCEDURAL HISTORY

A grand jury subsequently indicted Forman on two counts: one count of obstruction of justice in violation of 18 U.S.C. § 1503 for obstructing the grand jury investigation of Giacalone and LaRene, and one count of criminal contempt in violation of 18 U.S.C. § 401(3) for violating Fed.R.Crim.Pro. 6(e)(2) by disclosing, without proper authority, matters occurring before a federal grand jury.

The matter proceeded to a trial before a jury in November 1993. At trial, Forman raised the affirmative defense of duress. After a three-day trial, the jury deliberated for a day and a half before returning a verdict of not guilty on the obstruction of justice charge, but guilty on the criminal contempt count.

Forman was subsequently sentenced to 36 months on the criminal contempt conviction. After he had served 16 months of that 36-month sentence, the Sixth Circuit reversed Forman's conviction, finding that, because he was not assigned to work on the Giacalone/LaRene case in any official capacity, he was not subject to Rule 6(e)(2)'s grand jury proceedings secrecy requirement. See, United States v. Forman, 71 F.3d 1214 (6th Cir. 1995).

Following the Sixth Circuit's reversal of Forman's conviction, the Government indicted Forman under a new theory, charging him this time for theft of government property in violation of 18 U.S.C. § 641.

Forman now moves to dismiss this new indictment, proffering three arguments: First, that this new prosecution violates the constitutional prohibition of double jeopardy; second, that because he was acquitted of one count in the original trial, the facts cannot be relitigated under the rule of collateral estoppel:¹ third, that the fact that the new charges were filed after he had won his appeal creates a presumption of vindictive prosecution.

III. DISCUSSION

A. NOTWITHSTANDING THE SIXTH CIRCUIT'S RECENT DECISION IN RASHAD v. BURT, THE BLOCKBURGER "SAME ELEMENTS" TEST REMAINS THE TEST TO BE APPLIED IN DETERMINING WHETHER THE INSTANT PROSECUTION OF DEFENDANT FORMAN VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY.

The Fifth Amendment of the United States Constitution prohibits the prosecution of an individual twice for the same offense: No person shall "be subject for the same offence to be twice put in jeopardy of life or limb." For purposes of the Double Jeopardy clause's protection in the context of successive prosecutions for the "same offense", the Supreme Court has determined that the double jeopardy bar applies if the two offenses for which the defendant is tried cannot survive the "same elements" test first established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The "same elements" test (often referred to as the Blockburger test) inquires whether each offense contains a element not contained in the other; if not, they are the "same offense" and double jeopardy bars successive prosecution. See United States v. Dixon, 509 U.S. 688, 696-97, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993).

In Dixon, supra, the Supreme Court reiterated its adherence to the Blockburger "same elements" test and expressly rejected the "same conduct" approach taken by the Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which is the approach urged upon this Court by Defendant Forman in this case. Under the Grady test, the Double Jeopardy clause was held to bar a second prosecution "if to establish an essential element of an offense charged in that prosecution, the government [would] prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 509-11, 110 S.Ct. at 2087. Grady, however, was expressly overruled in Dixon. 509 U.S. at 703-05, 113 S.Ct. at 2860:

Unlike [the] Blockburger ... definition of what prevents two crimes from being the "same offence", [which] has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The "same-conduct" rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

As further explanation for its overruling of Grady, Dixon incorporated by reference the Grady dissent, id., in which Justice Scalia, joined by Justices Rehnquist, Kennedy and O'Connor, explained:

Blockburger furnishes, we have observed, the "established test" for determining whether successive prosecutions arising out of the same events are for the "same offence". This test focuses on the statutory elements of the two crimes with which a defendant has been charged, not on the proof that is offered or relied upon to secure a conviction. "If each statute requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."

495 U.S. at 527-29, 110 S.Ct. at 2097 (citations omitted and emphasis added.)²

The foregoing discussion makes clear that Defendant Forman's reliance on the Grady "same conduct" test in arguing that his...